Shah Mohamed Khan vs H.N. Woodfall

Rajamannar, C.J.—These revision petitions were first heard by Somasundaraip J., who directed them to be posted before a Division Bench,

because of the conflict of decisions on the only Question which arises in these petitions, namely, whether an application for leave to defend a suit

under Order 37, Civil P. C. can be entertained after a period of ten days from the date of service of the summons.

The question appears to us to admit only of one answer. Before dealing with the decisions on the question, the material statutory provisions may

he first noticed. Under Order 37, Rule 3, Civil P. C,, the Court shall, upon application by the defendant give leave to appear and defend the suit,

after the defendant satisfies the, Court by facts disclosed in affidavits that there is prima facie defence. Order 37, Rule 2(2) of the Code provides

that in any case in which the defendant has not obtained such leave, the allegations in the plaint shall be deemed to be admitted and that the plaintiff

shall be entitled to a decree.

We arc not now concerned with the provision in Rule 4 of Order 37 which empowers the Court in special circumstances to set aside the decree

and then give leave to the defendant to appear and defend the suit. Article 159 of Sch. I to the Limitation Act prescribes a period of ten days from

the time when the summons is served for an application for leave to appear and defend a suit under Order 37, Civil P. C. So an application filed

after the prescribed period of ten days would be barred by limitation and will have to be rejected u/s 3 of the Limitation Act, unless the period is

extended under any of the provisions contained in Sections 4 to 25 of the Limitation Act. Section 5 is one such section. It runs thus:

Any appeal or application for review of judgment or for leave to appeal or any other application to which this section may be made applicable by

or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or

applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

This section has not been made applicable to an application under Order 37, Rule 3 of the Code. Therefore, the Court would have no power to

extend the period of ten days prescribed by Article 159. We are not aware of any other provision of law under Which the period for filing an

application under Order 37 can be extended, except no doubt where fraud, is alleged, in which case Section 18, Limitation Act, would apply.

In thy case before us, the application under Order 37 Rule 3 of the Code was admittedly filed out of time. That was why the defendant filed

along with it another application (I. A. No. 266 of 1953) purporting to be u/s 5, Limitation Act, to condone the delay in filing the application. This

was allowed. The petitioner''s contention is that the court bad no power to condone the delay, as Section 5, Limitation Act, did not apply. It

appears us impossible to resist this objection.

So far, we have not referred to the dccisions on the question. The first of these is that of Mack J. in -- ''Murahari Rao v. Bapayya AIR 1949

Mad 742 (A). The learned Judge held that the court had power to give the defendant leave to defend notwithstanding the fact that he had not

made an application for such leave within ten days of the service of summons. The reasoning on which he came to this conclusion may be best set

out in his own words. The learned Judge said:

It is true that there is no specific provision in Order 37, Rule 2 or in the Limitation Act empowering a Court to condone a delay in appearance

beyond the ten days prescribed by the summons in farm No. 4. Technicality can be met with technicality, because the default recited in this

summons for non-appearance within ten days is that the plaintiff will be entitled after the expiration of this period to obtain a decree with costs. It is

common ground that no decree was passed by the Court when the defendant filed his application for leave to defend on the 11th day.

Furthermore under Order 37, Rule 4, even after decree the Court may, under special circumstances, set aside and give leave to the defendant to

defend the suit on terms it thinks fit. A fortiori if the court has passed no decree, it clearly has ample discretion to give the defendant such leave

notwithstanding the fact that he has not appeared within ten days of the service of the summons on him in Form No. 4. App. B.

The learned Judge finally enunciated a general rule that:

It is not necessary that every procedural order of the Court should be supported by a specific statutory provision, and when there is neither

provision nor prohibition it has to be guided by ordinary principles of common sense, justice, equity and good conscience.

The next case in which the same question arose is -- James Manickam Vs. Jaya Narayan Daga, . Chandra Reddi J. held that there was no

power in the Courts to condone the delay in filing the application for leave to defend. The decision of Mack J. was cited, but he expressed his

respectful disagreement with it.

After pointing out that Order 37 does not contain any provision for extending the time and that Section 5, Limitation Act, has not been extended

to an application under Order 37, Rule 3, he observed:

When a period has been fixed for the purpose of doing an act or taking a proceeding under the statute of Limitations or under any other

enactment, Courts do not possess the power to extend the time unless and until such a power is specifically conferred upon them. In this case the

Courts have not been invested with such a power. That being so, in my opinion, it is not competent for a court acting under p. 37, Civil P. C. to

excuse delay, in filing an application for leave to appear and defend in a suit under the summary chapter.

The learned Judge also referred to certain observations in a decision of the Division Bench in -- .'' Bysani Kamalamma Vs. Syed Ismail Ispahani

E. Venkata Sastri, , to which we shall refer later. In -- S. Srinivasan and Another Vs. P. Bhakthavatsulu Naidu, , Govinda Menon J. followed the

decision of Mack J. and held that the period of ten days fixed under Article 159, Limitation Act is not an inflexible one and that in a proper case

leave to defend could be granted ''ex debito justifiae'', even though an application for leave was filed after the period prescribed by Article 159.

With great respect to the learned Judges, Mack J. and ''Govinda Menon J., we must express dissent from their view. We shall first take up the

reasoning of Mack J. The learned Judge is of the opinion that because no decree was passed by the Court when the defendant filed his application

for leave to defend, the application would not be barred, even though filed after the time prescribed. We find it difficult to follow this reasoning.

The Only question before the Court is whether an application for condoning the delay in filing an application under Order 37, Rule 3 is

maintainable, and if so, under what provision.

The learned Judge has no answer to this question. Equally, we are unable to see how Order 37, Rule 4 has any bearing on this question. That

provision refers to a stage after decree. Nor are we able to accept the dictum of Govinda Menon J. that it cannot be said that the period of ten

days fixed under Article 159 of the Limitation Act is an inflexible one. We have never heard of any Article of the Limitation Act being flexible. The

learned Judge was inclined to hold that Article 159 only prescribed the eriod of ten days when the summons did not specially fix a date for the

hearing,

But Article 159 applies to all applications for leave to appear and defend, and the third column is specific as to the date from which limitation

begins to run, namely, when the summons is served. With great deference to the learned Judges, we may say that though the bar of limitation may

be technical, nevertheless Courts must apply the statutory provisions imposing such bar. Section 3 of the Limitation Act is mandatory, and when an

application is filed beyond the time prescribed by the relevant Article, it must be dismissed unless the period can be extended under one or other of

the provisions contained in Sections 4 to 25, Limitation Act.

In this case admittedly Section 3, Limitation Act, which is the only section which could have saved the application from the bar of limitation has no

application. The result is that the delay in filing an application under Order 37, Rule 3 cannot be condoned.

The decision in Bysani Kamalamma Vs. Syed Ismail Ispahani E. Venkata Sastri, to which one of us was a party, was not concerned directly with

an application under Order 37, Rule 3 of the Code. But the reasoning in that decision proceeded on the assumption that there was no provision for

enlargement of the time prescribed for an application under Order 37, Rule 3, Civil P. C,

We are in entire agreement with the reasoning and conclusion of Chandra Reddi J. in James Manickam Vs. Jaya Narayan Daga, which was

apparently not brought to the notice of Govinda Menon J. in S. Srinivasan and Another Vs. P. Bhakthavatsulu Naidu, .

We hold that the Court had no power to condone the delay in filing the application under Order XXXVII, Rule 3. The two civil revision

petitions are, therefore, allowed and the applications by the defendant are dismissed with costs in the Court below. There with be no order as to

costs in the civil revision petitions.